Bill ‘Reforms’ Constitution

The Democrats’ health-care overhaul asserts for Congress a power
that the framers of the Constitution never envisioned: the power to
force Americans to purchase unwanted goods or services.

With all the hype, one might think the “public option” is the
linchpin of the Democratic health plan. Yet Congress has created
entitlements in the past, and enrollment in a public option would
not be mandatory (at least not initially).

The legislation’s centerpiece is really the “individual mandate”
- an unprecedented legal requirement that Americans purchase health
insurance under penalty of law. The mandate is nearly universal,
and without it, as President Obama admitted to a joint session of
Congress, the legislation would fall apart.

Congress’ attempt to
punish a non-act that harms no one is an intolerable affront to the
Constitution, liberty, and personal autonomy.

But is it constitutional? The Constitution grants Congress the
power to regulate interstate commerce. Does that power extend to
behaviors, such as not purchasing health insurance, that are
neither interstate nor commerce?

If you think the answer is a self-evident “no,” then you haven’t
been following the Supreme Court over the past seven decades.
Instead of serving as a shield against states that attempt to
interfere with interstate commerce, the commerce power today has
become a sword that the federal government wields in pursuit of a
boundless array of socio-economic programs.

The Supreme Court has held that the power to regulate interstate
commerce extends to trade within a single state if it has a
substantial effect on interstate markets. Even noncommercial
activities within a state can be restricted if they threaten to
undercut federal regulation of interstate markets.

That’s the framework into which Senate Majority Leader Harry
Reid (D., Nev.) shoehorned his health bill. What he came up with is
a paper-thin pretense for asserting extra-constitutional
powers.

First, Reid tried obfuscation. Tucked away in that 2,074-page
bill is a citation of a 1944 Supreme Court ruling that deemed
insurance to be interstate commerce. Reid conveniently omitted any
reference to the McCarran-Ferguson Act passed the very next year,
which gave states absolute authority to regulate health
insurance.

That law’s effect has been to bar individuals from purchasing
health insurance across state lines. Accordingly, there is no
interstate market to be affected, much less undercut.

Reid’s second ploy was to pretend that forcing Americans to
purchase a product that many of them do not want is integral to the
regulation of our national health-care system. Perhaps so, but only
if the Constitution’s commerce clause, which was intended to
eliminate state barriers to interstate trade, becomes the vehicle
by which the federal government can compel people to engage in
intrastate trade. Not even the Supreme Court’s tortured
commerce-clause jurisprudence goes that far.

If Congress were interested in using the commerce clause for its
intended purpose, we would be debating the Health Care Choice Act,
which would permit the interstate purchase of individual health
policies. The Democrats, however, bottled up that bill in
committee.

They would rather exploit the cartelization of health insurance
in selected states to argue for a government-run insurance company.
Never mind that a major reason for those cartels is the prohibition
against purchasing insurance across state lines.

Finally, Reid would enforce this unconstitutional mandate with
an unconstitutional tax. The Senate bill attaches a penalty for not
complying with the mandate to the Internal Revenue Code. But the
penalty is not based on income, so it’s not an income tax. And it’s
not based on the value of the policy not purchased, so it’s not an
excise tax. Instead, the tax is a fixed amount based on family
size. That means it’s levied per person and therefore a “direct
tax” under the Constitution, which requires that such taxes be
apportioned among the states according to their population, as
determined by the census.

The individual mandate would extend the dominion of the federal
government to virtually all manner of human conduct - including the
non-conduct of not buying health insurance - by establishing a
federal police power that is authorized nowhere in the
Constitution. Democrats will have legislated a new quasi-crime, and
perhaps the sole offense in our history that can be committed only
by people of a certain income, since those below the poverty line
would be exempt from the mandate.

Congress’ attempt to punish a non-act that harms no one is an
intolerable affront to the Constitution, liberty, and personal
autonomy. That shameful fact cannot be altered by calling it
health-care reform.